IPRs provide a legal mechanism meant to stimulate technological advance for the benefit of society. IPRs provide the right to exclude, i.e. to exclude others from getting commercial benefit from the use of the invention without the consent of the holder of the rights for a restricted period of time. IPRs thus strike a balance between the interests of the inventor and those of ‘society’. This is illustrated by the temporary nature of the rights, by the obligations to make the invention publicly known (that a person ‘skilled in the art’ can reproduce it), and restricting it in case of emergencies or misuse (compulsory licenses). Since IPRs are territorial, one could say that IPRs should benefit the society of the nation in which they are granted. There may thus be a conflict when the expansion of the rights are based on trade arguments only (which is currently the case). Having IPRs thus do not automatically lead to the generation of income; it only provides the holder with the opportunity to generate income, for example by closing license contracts with commercial producers of marketable products (e.g. varieties).

Because of a variety of considerations, ‘methods of agriculture’ and living organisms were not patentable in most countries when the patent system was harmonised by the Paris Convention in the 1880s. At the basis of the exclusion of plant varieties were ethical, legal, and political considerations:

• ethical reasons include arguments related to the vision that life is God-given and cannot be owned,
• legal arguments relate to the view that varieties are not unobvious (as required by the patent system), they cannot be described precisely enough because they change over time due to mutation and introgression and they cannot be described in a way to enable someone ‘skilled in the art’ to reproduce it even when the person would have access to the same parents and selection method,
• political reasons were that food (security) is too fundamental to human life that it should not be privatised.

This left the agricultural sector without a legal protection of investors in research and plant breeding in particular, which was soon recognised to be a serious flaw. The first IPR-law to protect varieties was the Plant Patent Act of the USA (1930) which applied only to vegetatively propagated crops (genetically stable), explicitly excluded edible roots and tubers.

The situation dramatically changed after the Chakrabarty case in the USA (see Part 2-2 ("Introduction to expansion of IPRs")), which accepted an interpretation that that anything made by man can be patented, including living organisms and parts thereof (such as genes). This also made it much more interesting to patent tools of molecular biology since such patents could contain claims on the materials produced by such methods. Modern techniques and the introduction of deposits of genetic materials instead of relying on descriptions only, had weakened major legal arguments against patenting.

This initially led on the one hand to very broad claims (all genetically transformed cotton), and on the other hand to a rush on very specific patents, i.e. on DNA-sequences produced by early molecular biology tools. This latter policy was reviewed in the 1990s and changed to the extent that only functional sequences can now be patented of which the function is known. These developments clearly illustrate that a patent system is not static, i.e. that it can adapt to changing technologies and views. In some cases it may thus act as a tool for steering research investments.